[Congressional Record: July 31, 2008 (Senate)]
[Page S7955-S7956]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FEINGOLD (for himself and Mr. Whitehouse):
S. 3405. A bill to prohibit secret modifications and revocations of
the law, and for other purposes; to the Committee on Homeland Security
and Governmental Affairs.
Mr. FEINGOLD. Mr. President, today, the junior Senator from Rhode
Island, Senator Whitehouse, and I will introduce the Executive Order
Integrity Act of 2008. The bill prevents secret changes to published
Executive Orders by requiring the President to place a notice in the
Federal Register when he has modified or revoked a published Order.
Through this simple measure, the bill takes an important step toward
stemming the growth of secret law in the executive branch.
The principle behind this bill is straightforward. It is a basic
tenet of democracy that the people have a right to know the law.
Indeed, the notion of ``secret law'' has been described in court
opinions and law treatises as ``repugnant'' and ``an abomination.''
That is why the laws passed by Congress have historically been matters
of public record.
But the law that applies in this country includes more than just
statutes. It includes regulations, the controlling legal
interpretations of courts and the executive branch, and certain
Presidential directives. As we learned at a hearing of the Judiciary
Committee's Constitution Subcommittee that I chaired in April, some of
this body of executive and judicial law is increasingly being kept
secret from the public, and too often from Congress as well. The Bush
administration has concealed Department of Justice legal opinions,
interpretations of the Foreign Intelligence Surveillance Court, and
even the agency rule that requires Americans to show identification at
airports.
The shroud of secrecy extends to Executive Orders and other
Presidential directives that carry the force of law. The Federal
Register Act requires the President to publish any Executive Orders
that have general applicability and legal effect. But through the
diligent efforts of my colleague Senator Whitehouse, we learned last
December that the Department of Justice has taken the position that a
President can ``waive'' or ``modify'' any Executive Order without any
notice to the public or Congress--simply by not following it. In other
words, even in cases where the President is required to make the law
public, the President can change the law in secret.
The Office of Legal Counsel memorandum that contains this position is
still classified, but Senator Whitehouse convinced the Department of
Justice to declassify certain statements in the memorandum. The Senator
from Rhode Island spoke on the floor last December, and many times
since then, about these statements. They include the statement that
``[w]henever [the President] wishes to depart from the terms of a
previous executive order,'' he may do so, because ``an executive order
cannot limit a President.'' And he doesn't have to change the executive
order, or give notice that he's violating it, because by ``depart[ing]
from the executive order,'' the President ``has instead modified or
waived it.''
Now, no one disputes that a President can withdraw or revise an
Executive Order at any time; that is every President's prerogative. But
abrogating a published Executive order without any public notice works
a secret change in the law. Worse, because the published Order stays on
the books, it actively misleads Congress and the public as to what the
law is.
This is not just a hypothetical problem dreamed up by the Office of
Legal Counsel. It has happened, and it could happen again. To list just
one example, the administration's warrantless wiretapping program not
only violated the Foreign Intelligence Surveillance Act; it was
inconsistent with several provisions of Executive Order 12333, the
longstanding executive order governing electronic surveillance and
other intelligence activities. Apparently, the administration believed
its actions constituted a tacit amendment of that Executive Order. And
who knows how many other Executive Orders have been secretly revoked or
amended by the conduct of this Administration.
The bill that Senator Whitehouse and I will introduce provides a
simple solution to this problem. If the President revokes, modifies,
waives, or suspends a published Executive Order or similar directive,
notice of this change in the law must be placed in the Federal Register
within 30 days. The notice must specify the Order or the provision that
has been affected; whether the change is a revocation, a modification,
a waiver, or a suspension; and the nature and circumstances of the
change. If information about the nature and circumstances of the change
is classified, it is exempt from the publication requirement, but the
information still must be provided to Congress so that we, as
legislators, know how the law has been changed.
That is what our bill does; now let me talk briefly about what our
bill does not do. First, it does not expand the existing legal
requirements, under the Federal Register Act, that determine which
Executive Orders must be published. To the extent the Federal Register
Act permits a certain amount of ``secret law'' in the form of
unpublished Executive Orders, our bill leaves that framework in place.
Second, our bill does not require public notice when the President
revokes or modifies an unpublished Executive Order--even if the
substance of the unpublished order is well-known to Congress and even
the American people. This bill is narrowly aimed at the situation in
which the American people have been given official notice of one
version of the law, but a different version is being implemented.
Third, the bill does not require the President to adhere to the terms
of an Executive Order. Many scholars have argued that a President must
adhere to a formally promulgated Executive Order unless or until the
Order is formally withdrawn or amended, just as the head of an agency
must adhere to the agency's regulations. I happen to agree. But this
bill does not take a position on OLC's assertion that any deviation
from the Executive Order by the President is a permissible amendment of
that Order. It simply requires public notice that the amendment has
occurred.
Fourth, the bill does not require the publication of classified
information about intelligence sources and methods or similar
information. The basic fact that the published law is no longer in
effect, however, cannot be classified. On rare occasions, national
security can justify elected officials keeping some information secret,
but it can never justify lying to the American people about what the
law is. Maintaining two different sets of laws, one public and one
secret, is just that--deceiving the American people about what law
applies to the government's conduct.
I commend Senator Whitehouse for his tireless work to bring this
issue to light, and I urge all of my colleagues in the Senate to
support this modest effort to ensure the integrity of our published
laws.
Mr. President, I ask unanimous consent that the text of the bill be
placed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3405
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Executive Order Integrity
Act of 2008''.
[[Page S7956]]
SEC. 2. REVOCATIONS, MODIFICATIONS, WAIVERS, AND SUSPENSIONS
OF PRESIDENTIAL PROCLAMATIONS AND EXECUTIVE
ORDERS.
Section 1505 of title 44, United States Code, is amended by
adding at the end the following:
``(d) Revocations, Modifications, Waivers, and Suspensions
of Presidential Proclamations and Executive Orders.--
``(1) Notice required.--If the President, whether formally
or informally, and whether through express order, conduct, or
other means--
``(A) revokes, modifies, waives, or suspends any portion of
a Presidential proclamation, Executive Order, or other
Presidential directive that was published in the Federal
Register; or
``(B) authorizes the revocation, modification, waiver, or
suspension of any portion of such Presidential proclamation,
Executive Order, or other Presidential directive;
notice of such revocation, modification, waiver, or
suspension shall be published in the Federal Register within
30 days after the revocation, modification, waiver, or
suspension, in accordance with the terms under paragraph (2).
``(2) Content of notice.--
``(A) In general.--Except as provided under subparagraph
(B), the notice required under paragraph (1) shall specify--
``(i) the Presidential proclamation, Executive Order, or
other Presidential directive, and any particular portion
thereof that is affected;
``(ii) for each affected directive or portion thereof,
whether that directive or portion thereof was revoked,
modified, waived, or suspended; and
``(iii) except where such information is classified, the
specific nature and circumstances of the revocation,
modification, waiver, or suspension.
``(B) Revised executive order.--Where the revocation,
modification, waiver, or suspension of a Presidential
proclamation, Executive Order, or other Presidential
directive is accomplished through the publication in the
Federal Register of a revised Presidential proclamation,
Executive Order, or other Presidential directive that
replaces or amends the one that was revoked, modified,
waived, or suspended, that revised Presidential proclamation,
Executive Order, or other Presidential directive shall
constitute notice for purposes of paragraph (1).
``(3) Classified information.--If the information specified
under paragraph (2)(A)(iii) is classified, such information
shall be provided to Congress, using the security procedures
established under section 501(d) of the National Security Act
of 1947 (50 U.S.C. 413(d)), in the form of a classified annex
delivered to--
``(A) the majority and minority leader of the Senate;
``(B) the Speaker, majority leader, and minority leader of
the House of Representatives;
``(C) the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives;
and
``(D) if the information pertains to national security
matters, the Select Committee on Intelligence of the Senate
and the Permanent Select Committee on Intelligence of the
House of Representatives.
``(4) Rule of construction.--Nothing in this subsection
shall be construed as either authorizing or prohibiting the
revocation, modification, waiver, or suspension of any
Presidential proclamation, Executive Order, or other
Presidential directive that was published in the Federal
Register through means other than a formal directive issued
by the President and published in the Federal Register.''.
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